Once again, we must return to the issue which continues to excite the nation, the issue which is keeping Australians awake at night, tossing and turning:Who is their Head of State?

Well of course they are not.

In John Howard’s words, this is no barbecue stopper!

We at ACM talk about it because, as they say, we had to “address” it- whatever that “addressing” an issue means.

Remember-it was the republicans who raised it. In the nineties, they advanced two principal arguments in their campaigns for a republic.

First, we had to have an Australian for a Head of State.

The second one, which they did not bring out too often- because it was so ridiculous-, was that we had to become a republic to become independent.

Everybody knew that we were already independent. They did not push that one too far.

There were other arguments, and I shall never forget one advanced by the then Vice Chancellor of the University of Melbourne, Professor Alan Gilbert. His argument was that if we didn't vote `Yes' in the referendum we would be the laughing stock of Asia and the world. And of course we are anything but the laughing stock of Asia and the world. In fact, we are more highly respected than ever before.

Who needs a head of state?

The essential argument then was that we need an Australian as a Head of State, and that argument was so advanced that at one stage Paul Keating said `

I’m going to hold a plebiscite. The plebiscite will be

Do you want an Australian as Head of State?

Lloyd Waddy replied, brilliantly:

I will be advising all sponsors of ACM to vote `YES' because we already have an Australian as Head of State, i.e. the Governor General!

Consequently Mr Keating said nothing more about his proposed plebiscite.

I think there are two ways of looking at this question:

. From the point of view of International Law;

ii. And from the point of view of Constitutional Law.

As you can see, this is essentially a legal question.

The Cane Toad Republic:

In a book that I wrote for the campaign called `The Cane Toad Republic' [1] I spent a chapter on Head of State essentially on the International Law question: "What is a Head of State".

I spent a chapter in that book talking about the Head of State in International Law. I didn't spend much time on Constitutional law; I did that because the term Head of State is essentially a diplomatic term which comes from International Law.

Aside:

That was the book, The Cane Toad Republic, which for some reason, although the press was fairly excited about the republic question, no one in the press bothered to review! I don't understand

The term Head of State:

The original term, as the states emerged in international law after the Treaty of Westphalia (1648), and as the Holy Roman Empire weakened and was eventually dissolved by Napoleon, was “prince”. In most cases the prince retained some loyalty to the Holy Roman Emperor and certainly to the Pope. It was a generic diplomatic term, whether or not the particular prince was known as that, or the king, the elector and so on. As republics emerged - Venice, the Low Countries or the Netherlands for a time, Switzerland, the United States, and the first of the five French republics - the practice developed of referring to the prince as the “head of state”. The new term was never used internally, it was a diplomatic term, governed by international and not domestic law.

Picture: Galahs

Now, International Law is the system of law which governs relations between States, it is not domestic law, it exists in the nation to laws concerning war and similar matters. It is something which is esoteric; and some people question whether it is law at all. To a great extent it is not enforceable except by war. But it is a legal system that governs relations between states.

In recent years, if I may paraphrase Paul Keating, it is almost as if every Galah in every pet shop in the country is talking about international Law!

It has become a very convenient term, because a number of international conventions have been negotiated mainly by bureaucrats and it has been a way in which, quite often unpopular developments can be put in the treaty and then approved by parliament and incorporated into domestic law. And it is a way, I think, of circumventing domestic and democratic process. But that is another question.

Can do we know who the Head of State is?

To repeat this very important point. It was in international diplomacy, not domestic constitutional law that the concept of the Head of State emerged.

How then do we know who is the Head of any particular State? Is it by what he or she does? Is it the name or title used? Is it a particular person?

What does a head of state do?

Can you work out the Head of State from, for example what he or she does? We know for example what a lawyer does; you know that a lawyer acts as an advocate in court. We know that a person operating in a hospital is a doctor-or at least we hope he or she is a doctor!

Is there a commonality in relation to the functions of a Head of State?

There are a number of things that most princes or Heads of State used to do:

They used to govern countries.

They used to wage war

Their religion was the state religion.

But today, there are no functions which only Heads of State perform.

If you look at heads of state today some heads of state do very different things from other heads of state:

Take the president of the United States

· he is the head of state

· he heads the government

· he has enormous authority

· as Commander in Chief he can send the troops of the United States to fight in other countries

· He can veto legislation.

If you take on the other hand the Head of State of Ireland:

· she does not govern the country

· she has less authority than say our Governor-General

· she has to ask the approval of the government of the day to make a speech,

· She had to ask the permission of the government of the day to leave the country.

The Irish Head of State differs remarkably from the American Head of State.

In the celebrated case concerning General Pinochet who was arrested in London, the House of Lords considered the immunity of a Head of State from the jurisdiction of a foreign court. One of the Law Lords, Lord Slynn of Hadley made the point that there is no commonality in the role and functions of the world’s heads of state, in fact they all have different functions.

In brief, you cannot tell who the Head of State is by what they do.

What's in a name?

Can you tell who the Head of State is by his or her title?

Again there is no commonality in relation to the title of Heads of State; they have all sorts of titles:

Japan has anEmperor

The Vatican City State has the Pope, who apart from being the religious leader of the Catholic Church is also the head of that very small state.

The Head of State of Luxembourg is a Grand Duke

We have had Presidents, Emperors, Kings, Queens, Princes, Emirs, Paramount Rulers, Dear Leaders, Caudillos, Captain Regents, Regents, Paramount Chiefs, General Secretaries, Electors, Chairmen, First Consuls, the Stadholder and Governors-General- and all have been held out to be Heads of State.

They are all very different titles. So the title tells us nothing in itself

Multiple Heads of State!

At times more than one person can be Head of State. In Switzerland the Head of State really is the Executive Council which consists of seven people.

In Andorra, which is a state located on the border of France and Spain, there are two heads of state, the two co-Princes. One is the king of France or his successor, now the President of France; the other is a Catholic Bishop of Urgell in Spain. San Marino has two Captains-Regent

The Soviet Unionhad a Presidium which consisted of a Chairman, a deputy chairman for each of the 15 Union Republics, a secretary and twenty members. The collective Head of State of the Soviet Union was almost the size of a public meeting. Stalin incidentally was never the Head of State of the Soviet Union, he was the Secretary General of the Communist Party, and at times Chairman of the Council of Ministers. On the other hand Hitler was Head of State, but Mussolini was not.

So:

You cannot tell who the Head of State is from the title

You cannot tell who the Head of State is from the way they are addressed

You cannot tell it from the ceremonial that surrounds them

There is only one way you can tell who the Head of State and that is by a useful tool of international law

International Law

Recognition is that tool. It is used widely in international law.

For example: for a number of years the nationalists in Taiwan were recognised by Australia as the Government of China even though they had no control or presence on the mainland, but were restricted to the island of Taiwan. It was our continuing to recognise the old Nationalist government as the government of China, along with most countries, apart from the UK, which was the way we decided who the Government of China was, and how the UN decided who was to take China’s place on the Security Council.

It is the same with the determination of the Head of State. The Head of State is the person or institution who is held out to be Head of State and who is recognized as such. For years, Chiang Kai-chek was acknowledged by Australia and the UN as the Chinese Head of State, although his writ did not run on the mainland.

And for a many years, we have held out to other governments that the Governor General is the Head of State. He is perceived as our Head of State. In fact Sir Ninian Stephen once cancelled a visit to Indonesia, because the Indonesians said that they would not receive him as Head of State; they would send the Vice-President to receive him because they said `the Queen is our Head of State'.

The Indonesian Government subsequently apologised, because they had misunderstood who our Head of State was.

The present and previous governments hold out both to other governments and to international institutions, including the UN, that the Governor General is our Head of State.

At the funeral of the Pope in 2005, the Governor General represented this country as the Head of State. He sat in the front row with other heads of state; he went to Moscow to represent us in relation to the 60th Anniversary of the Victory in Europe of the Second World War. He was in other places, to represent us and he is perceived in all of these as our Head of State.

What does this mean? It means the Head of State is entitled to a certain courtesy and protocol. For example , on state occasions, the Head of State is received with a 21 gun salute. By way of contrast, the Head of Government would only receive an 18 gun salute!.

This is not of great moment in international law except in one particular instance. Normally the Head of State is immune from the jurisdiction in other countries –par in parem non habet jurisdictionem. When your Head of State visits another country he cannot be subjected to the laws of that country for what he does in relation to Head of State. That's why there was such a fuss in the Pinochet case.

When General Pinochet was arrested and held in London, because the Spanish Judge had issued a summons to bring him to Spainfor trial. The argument in that case was a complicated legal argument because it was said that there are certain offences which even if you are Head of State, there are serious international crimes for which you can be tried and that every state has universal jurisdiction under international law to prosecute them.

This is disputed area of the law, but that part, it is generally agreed that a Head of State is immune from the jurisdiction of another state.

As you can see there is a very strong argument, I believe an incontrovertible argument that under international law the Governor General is our Head of State. This does not preclude us, if we so wish, from asking the Queen to perform some or other function of the Head of State. We have never done that but the Canadians have on two occasions. The Canadians have asked the Queen to represent Canada in other countries: mainly the United States. And the Queen held certain functions in the United States, presumably on that occasion Her Majesty was the Head of State. The Canadians, incidentally, have no reservations about occasionally referring to the Queen as Head of State.

What I am saying is the Governor General clearly is our Australian Head of State. This would not preclude us from asking the Queen to perform some function outside of Australia. But one thing is absolutely clear, diplomatically and under international law ,the Governor General is our Head of State.

Constitutional Law

The question then is , who is the Head of State under our Constitution?Is the Governor General our Head of State under our constitution?

What I would say is the term `Head of State', as a term of constitutional law, is unknown in the constitutional Law of our country; or that of the United Kingdom; or that of the United States.

I think we can interpret the term constitutional law as more than just the Federal Constitution. The Federal Constitution was a compact between the people of the various states to form a single commonwealth. But there are other constitutional documents. I prefer a definition given by Bolingbroke during the English Civil War as to what a constitution is. He said:

It is that assembly of laws, institutions, and customs,

By which the people have agreed to be governed.

That is very good for the United Kingdom, for, as you know, they do not have a single document that they call a constitution. But it is also I think, appropriate for us, because our constitution is more than just the Federal Constitution. It is certainly also the State Constitutions, it is certainly also a number of important documents, which reflect our evolution from six colonies to an independent country. For example

The Balfour Declaration, 1926,

The Statute of Westminster, 1942,

The Australia Acts 1986.

So I think our constitution is wider than just one single document. And if you check on every one of those documents there is no reference whatsoever to the word Head of State.

I would also include that golden thread which comes from the Magna Carta to the legislation adopted in the glorious Revolution- in particular, the Act of Settlement and the Bill of Rights.

And I would also include the customs , the conventions which guide the Crown, the ministers of the Crown and the Parliaments.

All of this is part of those laws institutions and customs by which we, the Australian people, have agreed to be governed.

Is it in the dictionary?

In fact, until the republicans decided to introduce it into our debate it was so esoteric, so technical, so restricted to diplomatic practice, so restricted to International Law that if you look in the first edition of the Macquarie Dictionary, the 1981 edition ] there is no reference whatsoever to Head of State. You'll find "loose-head", from rugby. And "head" meaning a ship's toilet. There's the colloquial use of the word for a drug user. "Head-hunting", "head boy" and "heading dog" are there. As is "head and shoulder", "lose one's head"! As are the now politically incorrect terms, "headmaster" and "head mistress". And under "State" there is "State aid", "States righter", the American "Statehouse" (which is not to be confused, it seems, with the New Zealand "state house", a private dwelling built and owned by the State!) There is "state-of-the-art", "statesman" and "stateswoman". But no "Head of State". I went back and looked at some old dictionaries: the American Dictionary, the authoritative Webster’s Dictionary went back to a 1909 one could not find it.

Dictionaries, at least those of the English language, reflect usage. And the plain fact is that neither Australians (at least until recently), nor the British, New Zealanders, Canadians or Americans use the term "Head of State".

Telegraph poll:

In 1998 the London Telegraph conducted an opinion poll in Englandand they asked people `Who is the Head of State?'

15% said the Head of State was Tony Blair

27% Didn't Know

56% a majority but not a great majority gave the correct response.

The esoteric diplomatic term, Head of State only became common in Australia because the republicans were desperate to have a reason some reason to throw out our constitutional system.

They couldn't argue that our constitution was `broke' because it is not,

They couldn't argue about constitutional weakness ; they needed some argument to bring to Australians. So they took an obscure term from diplomatic practice they passed it through the elite salons in the Eastern Suburbs , (not the present assembly) and they made it part of the common parlance in the nation . People are talking about Heads of State all over the place; but, let me tell you one thing.

It is no barbecue stopper.

Fascist:

When I looked at it to find out when it was first used by anybody in Constitutional LawI found that there was an interesting precedent for its first usage. It wasn't part of our system of law : the Anglo/ American and of course Australian system of law.

I first found it used internally in a country in Spain: Spain under General Franco. General Franco as you know launched a campaign against the Spanish Republic. He wanted to restore the Monarchy but he didn't want to put the Monarch immediately back on to the throne, in fact he preferred his son, the present King, Juan Carlos.. So the term that he used for himself was Jefe d’Estado, Chief or Head of State. So he introduced the term and he became the Head of State of Spain, not the President [he didn't want to be the President]- he became the Head of State. As you know he re-established the Monarchy, and it has been a great success in Spain.

The second example was in Vichy France, again under a fascist regime, that of Marechal Henri-Phillipe Petain. As you know, after the fall of Franceduring the Second World War, Petain took over and France became effectively a German ally, with part of the country under occupation. In 1940, Petain declared himself to be Chef de l'État . He also acquired the title President de la République , but he wasn't very happy with this because of its reference to the republic.

So there you get the first examples of the use of Head of State internally. How amusing it is that the republicans borrowed this practice of using the term Head of State internally from the fascist states.

Don't mention the constitution !

Well not Section by Section.

Now the republicans make a great play about section 2 of our Constitution. Section 2 of our Constitution says:

2. A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth , and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.

From this the republicans say the Governor General is just the representative of the Queen and therefore SHE is the constitutional Head of State and he is just the representative.

Republicans usually prefer to ignore another section, section 61 of the Constitution. section 61

(I have to be careful here; I remember Lloyd Waddy saying “Never mention different sections when you refer to the Constitution when talking to journalists, because they put down their pencils”.)

Section 61 begins by saying that the executive power of the Commonwealth is vested in the Queen. Of course this does not mean only QueenVictoria, this means the Crown. The Crown refers to the reigning monarch but it also means an institution that never dies, which continues and which is at the very heart of our Constitution. This is an institution above politics, personified by the Queen. The section says that the executive power is vested in the Crown and is exercisable by the Governor General .

These powers exercisable by the Governor General, according to the section, extend to the execution and maintenance of the constitution itself and of and the laws of the Commonwealth. So you have a very clear provision in the Constitution which says the powers of the Crown, the power of this institution above politics are to be exercised by the Governor General.

Our constitution: a novelty:

Section 61 was a novelty in the practice of the British Empire and Commonwealth. Indeed there were a number of unique features about our constitution, which made it very different from the had happened before in the Empire.

i. We drafted it.

The Canadians didn't draft their original constitution, which was the British North America Act. It was drafted in London and just given to the Canadians. They agreed with it; in many ways it gave them more self government than they had before.

ii. We approved it.

It was one of the few constitutions in the world actually approved by the Australian people. The American, the Canadian, the German and the Italian were not..

iii. The powers of the Crown in the constitution itself were given to the Governor General.

This was not the case in the Canadian Constitution where the powers are vested in The Queen. Her Majesty then had to delegate these to the Governor General by Letters Patent and the Royal Instructions.

iv. It actually gave us the power to change it.

The fourth point a big difference about our Constitution was that it actually gave us the power to change it.

I remember an academic conference in Queensland, the Law conference a few years ago, a French Professor was talking about this and he said it would be inconceivable in the French Empire not only to get in a colony its own governance but in the constitution to have given it the power to change its constitution itself, without reference to London.

The Canadians did not have this power. It was not until Trudeau, a few years ago, that the Canadians “repatriated” their constitution.

So the 1900 constitution, which took effect in 1901, is an extraordinary Constitution .For our purposes what was important was that section 61 which gave the power to exercise the executive powers to the Governor General.

Letters Patent:

The Colonial Office clearly did not fully comprehend what had happened .

They did what they did to every other colony, they had the Queen, Queen Victoria, sign Letters Patent establishing the office of Governor General and they had her sign instructions telling the Governor General how to exercise the executive powers .

It was not until 50 years later that the Solicitor General of Australia informed Sir Robert Menzies that this was an error, that there was no need for royal instructions because all the powers were vested in the Governor General. This had in fact been noticed by a British judge sitting in the Privy Council in 1923. The judge, Lord Haldane, said:

Does it not put the Sovereign in the position of having parted, so far as the affairs of the Commonwealth (of Australia) are concerned, with every shadow of active intervention in their affairs and handing them over, . to the Governor-Genera?.

So we received a substantially more modern constitution than the other Dominions , more appropriate to that wonderful story of the most sophisticated and civilized transfer of powers by the United Kingdom as we gradually became a fully independent country. This was so evolutionary, so peaceful and so civilised that it is impossible to proclaim precisely when we actually became independent. The Indians of course can point to a particular year. The Americans can point to a year. Ours is such an evolutionary passage that it is not absolutely clear when it occurred.

The Treaty of Versailles:

Certainly by the end of the First World War when we signed the Treaty of Versailles which finally ended the First World War, we appeared to be independent. If you actually look at it and you see the signatures, those of the Empire are all grouped together and you will there the signature” W.M. Hughes”. Billy Hughes signed it for Australia. All the Dominions are there, with the British. And then we became members of the League of Nations- certainly an indication that we were an independent country.

This was specifically recognised in 1926. This was at the Imperial Conference.

The Balfour Declaration:

It was recognised that we were autonomous communities equal in status; in no way subordinate to one another, united in a common allegiance to the Crown. And it was also agreed at that conference, that the Governor General is the representative of the Crown, in all essential respects, the same position in the affairs of Australia, the public affairs of Canada and so on, as the King is in United Kingdom. In other words, this was a recognition that the Governor General had the same position in Australia as the King had in the United Kingdom.

The Governor- General no longer represents the imperial government

Then it was recognised, if that is the case, that it was inappropriate to have the Governor General performing two functions. Until the Balfour Declaration the Governor General did two things, he acted as the local Constitutional Monarch but he also was the point of communication between London and the Dominions. That seemed to be entirely inappropriate. To play those two roles, as diplomatic agent for the British (Gough Whitlam in his inimitable way said the governor General had been `A spy for the British') as well as acting as the local Constitutional Monarch . So it was decided to relieve the Governors-General of the duty of the role of representing the British Government. High Commissioners were then appointed to perform this role.

Appointment

. Until 1926 the Governor General was appointed by the King on the advice of the British Government. That also seemed to be entirely inappropriate, if we were all separate and independent, autonomous, it was decided that it was the local government who should decide make a recommendation to the King. So we got that development where by Mr Scullin , the Labour Prime Minister, recommended to the King that an Australian be appointed to be Governor General.

The King was not happy with that. Not because he didn't think that an Australian could do it! His argument was that you really need someone from outside who is not already prejudiced, or not already tainted by the political life of Australia. The person who was being recommended was Sir Isaac Isaacs who was a judge, but before then he had been a politician. But King George V said `No you should have someone from outside', but Prime Minister Scullin insisted and the King finally made the appointment.

An Australian Recommendation

So we see the emergence of a practice, a convention, which is now really part of the our Constitution. It is informal, and customary, and not in the actual Constitution itself, but it is part of our constitutional practice. From that time it was the Australian Prime Minister who made the recommendation.

There is no guarantee of course that the Queen will immediately act. During the (1999) referendum, I was criticised by one particular constitutional monarchists for saying that it could not be assumed that The Queen will always act immediately on the advice of a Prime Minister.

An Irish Governor General:

There is a precedent related to Ireland. At that time , the Irish Free State was a Dominion. The Prime Minister , Eamon de Valera, he wanted to get rid of the Governor General, Governor General, who had offended some Irish Ministers merely because he had attended a function at the French Embassy in Dublin.

They objected to the Governor General showing any sign of being a Head of State, even going to diplomatic functions. The ministers walked out when the Governor General arrived, and they decided to get rid of him. Eamon de Valera make a recommendation to the King to dismiss the Irish Governor General, who had been a incidentally, fighter for the liberation of Ireland. And the King suggested that since his term had not long to run, he be given a reasonable opportunity to resign. Eamon.de Valera wanted him to go immediately, it took a number of months to get rid of that Governor General. Some of the proposals from de Valera for a replacement were considered unacceptable by the King. One was to make the Chief Justice the Governor General, while remaining Chief Justice. Nor was a committee acceptable.: three people as Governor General. .

Eventually De Valera recommended a person who agreed to not live in Government House, the former Vice Regal Lodge.[5] He also agreed with de Valera to perform no other functions apart from signing those documents that de Valera told him to sign. New South Welshmen will not be surprised by De Valero’s actions.

Hanover

There was a parallel of development, and it was not realised at the time. What was becoming clear and wasn't realised at the time was that instead of there being one institution, one imperial crown for the whole Empire, these were really breaking up into separate crowns. So you have an Australian Crown, a Canadian Crown, and the British Crown- separate institutions with one person. We now had a personal union.

This was already known to international law, and in the history of the United Kingdom. When the crown descended to George 1, the Elector of Hanover, there arose a personal union between Hanover and Britain. The same person was both King of Hanover, and King of Britain. That ended when Victoria ascended the throne in Britain, because under the German Salic Law a woman could not become Sovereign. So, the Hanoverian succession went to the nearest male.

So the concept of personal union is not unknown in international law. What we have now is a number of separate institutions with separate crowns with one person Elizabeth, who is our Sovereign. . Some republicans think this is modern and that it is a terrible, a shocking thing.

The Index:

Not so One of the great tests of how well countries are doing is the United Nations Human Development Index. It is produced every year and it measures such things as health, life expectancy, wealth on a comparative basis, education, all put together in an Index. And last year the top five countries were all constitutional Monarchies. Usually when it is produced, the top ten countries have been dominated by constitutional monarchies, and what you find is that of those constitutional monarchies, many have Elizabeth as their Queen.

The Australian Head of State

So what emerges constitutionally, is a very clear indication, that the Governor General exercises all of the powers, of the Crown in Australia except his appointment, and his removal. That is done by the Queen. In fact when the Queen first visited Australia Menzies wanted her to perform some of the Acts of the Governor General. It was found that the Queen could not do that under most of the Australian statutes. They had to pass the 1954 special legislation called the Royal Powers Act which allows the Queen when she is here to do what the Governor General can do under the statutes.

1975

So we have had an interesting development, and perhaps one of the most remarkable was in 1975, when Sir John Kerr decided that he would withdraw the commission of Mr Whitlam. As I am sure you will all know.

Governors and Governors General will normally act on advice but even when acting on advice, they are not rubber stamps. They need to assure themselves that they have the power to do what is being recommended. That if any conditions are attached to the exercise of the power then those have been fulfilled. But in some conditions the Governor General or the Queen can exercise their discretion. A Governor General does this in relation to elections.

As you know 1975 Sir John Kerr decided that he would not accede to the advice of Mr Whitlam that since supply had not been granted, supply bills were still held in the Senate. Sir John Kerr decided that he would withdraw Mr Whitlam's commission and he commissioned the leader of the opposition ; on the condition that he hold a double dissolution.

The Speaker of the House in the House of Representatives appealed to the Queen to overrule the decision of the Governor General. The Queen's reply was that that power was invested in the Governor General and it would be improper for the Queen to intervene.

States

There was an interesting relationship that lingered for some years. The State Governors up till 1986 were still appointed by the Queen on the advice of the British Government. It was an anomaly, changed by the Australia Act. This specifically provides that the Premier is the adviser of the Queen in matters relating to the Governor. Having, unlike Canada, obtained this unusual degree of independence from the Federal Government, five very short sighted Premiers proceeded in 1999, to attempt to shoot themselves in the foot by supporting the Yes case in the referendum. Fortunately the people of those states wee wiser than their Premiers!

Conclusion:

Under international law , the Governor General is indisputably the Australian Head of State ; The Queen is our Sovereign. And since the exercise powers of the Crown in the right of the Commonwealth, save his appointment or removal, are vested in the Governor General, it is appropriate to refer to him as the Head of State.

(* National Convenor, Australians For Constitutional Monarchy. I am indebted to Rosemary Colman, of the ACM Kingsford Branch for the transcription and setting out of a speech on this topic, reproduced at www.aussiecrown.org.au , on which this version is based)